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Recent documents in GGU Law Digital Commonsen-usFri, 22 Feb 2019 01:53:24 PST3600A Patent Reformist Supreme Court and Its Unearthed Precedenthttps://digitalcommons.law.ggu.edu/pubs/839
https://digitalcommons.law.ggu.edu/pubs/839Wed, 20 Feb 2019 12:07:17 PST
This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit.

Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952.

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Samuel F. ErnstRadical Reconstruction: (Re) Embracing Affirmative Action in Private Employmenthttps://digitalcommons.law.ggu.edu/pubs/838
https://digitalcommons.law.ggu.edu/pubs/838Wed, 20 Feb 2019 10:01:42 PST
The history of employment in this country is the history of racism. Using public and private mechanisms as well as violence to devise and enforce segregation and preferential treatment, the white male institutionalized an unprecedented advantage in the labor market. Yet this is rarely acknowledged as a factor in the current widening economic disparity between whites and blacks. Today, many white Americans, cloaked in the myth of colorblindness and meritocracy, refuse to see the persistence of racial prejudice, disadvantage and discrimination in the labor market.

This article is a call for a radical reconstruction of the private labor market through re-embracing affirmative action as an effective tool to achieve equality. Part II traces the growing income and wealth disparity between blacks and whites and links the history of segregation and implicit bias in the labor market as a factor contributing to economic disparity. Part III is a historical account of the movement for racial equality, tracing the alliance between nondiscrimination and affirmative action and the triumph of equal opportunity (formal equality) over equality of outcomes (substantive equality). Part IV examines the legal justification and viability of affirmative action programs under the Fourteenth Amendment and Title VII. Part V is a roadmap for how we can re-embrace affirmative action in the private employment sector, from reframing the dialogue to grassroots pressure on large employers and unions to adopt affirmative action plans that include race-conscious decisionmaking.

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Hina B. ShahReservoirs of Opportunity. Report of the National Recreation Lakes Study Commissionhttps://digitalcommons.law.ggu.edu/federal_documents/30
https://digitalcommons.law.ggu.edu/federal_documents/30Tue, 05 Feb 2019 11:06:03 PST
Based on its findings, the Commission draws these conclusions about the status of recreation at federal manmade lakes, and about the difficulties of providing water-related recreation to the public.

1. Federal lake recreation is a significant national resource and public benefit of federal water projects, and it makes important contributions to local, state, and national economies.

2. Recreation at federal lakes has not been treated as a priority, or often even an equal, with other reservoir uses, despite its stature as an authorized purpose. This is manifested in often inflexible water management for recreational purposes, in lack of public communication about changes in water levels for other purposes, and in failure to provide and maintain the facilities and services needed to meet public demand for recreation at federal lakes.

3. Recreation management at federal lakes has suffered from lack of unifying policy direction and leadership, as well as insufficient interagency and intergovernmental planning and coordination.

4. Recreation facilities at most federal lakes are inadequately maintained and insufficient for current levels of public use. Funds are not available to correct an $800 million maintenance backlog, nor to construct and operate new facilities. 5. Federal recreation user fee practices are not particularly successful as a revenue generator. The Fee Demonstration Program appears to provide a model for greater success in producing fee revenue.

6. Meeting current and future demands for lake-related recreation, with or without increased appropriations, will require smart, flexible, visionary management and better ways of doing things.

7. The value of providing recreation services through local partners underscores the need to expand and improve development and operating partnerships with state and local governments and with private businesses.

8. Inconsistent concessionaire policies across lake management agencies do a disservice to the public, which benefits when concessionaires have the conditions to succeed.

9. Agency policies against cost sharing with state and local government partners are unwise. Cost sharing in the operation and maintenance of facilities operated by local jurisdictions would be cheaper for the federal government in the long run and in the best interest of the public.

10. There is ample justification and precedent to integrate reservoir water management, particularly drawdowns and flow levels, to serve recreation and environmental purposes. This can be done while still achieving the intent of Congressional authorizations.

11. Clean water is critical to lake recreation as well as lake health. The Commission endorses the total watershed approach to clean water and the Environmental Protection Agency's expressed commitment to give increased emphasis to clean lakes under the Clean Water Act.

12. The concept of a national recreation lake system has merit, but such a system should not be created before it can be tested through a smaller scale demonstration program.

Recommendations Commission recommendations are presented in a framework of five overarching themes: Make recreation a higher priority at federal lakes. Energize and focus federal lake recreation leadership. Advance federal lake recreation through demonstration and reinvention. Create an environment for success in federal lake recreation management. Identify and close the gap between recreation needs and services.

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National Recreation Lakes Study CommissionManagement of the California State Water Projecthttps://digitalcommons.law.ggu.edu/caldocs_agencies/509
https://digitalcommons.law.ggu.edu/caldocs_agencies/509Tue, 05 Feb 2019 09:36:33 PST
Bulletin 132-99, Management of the California State Water Project, continues the Bulletin 132 annual series begun in 1963. Bulletin 132-99 updates water supply planning, construction, financing, management, and operation activities of the State Water Project. Appendix B contains data and computations used to determine the State Water Project contractors' Statement of Charges for 2000. Appendix B was previously published as an individual document.

The Bulletin discusses significant events and issues that affect SWP management and operations. The Bulletin covers the period from January 1, 1998, to December 31, 1998.

Bulletin 132-99 also discusses water supply and delivery; plans for the East Branch Extension; deregulation of the electric utilities industry; financial analysis of the SWP; and Delta resources and environmental issues, including the CALFED Bay-Delta Program.

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Department of Water ResourcesCalifornia Water: Looking to the Futurehttps://digitalcommons.law.ggu.edu/caldocs_agencies/508
https://digitalcommons.law.ggu.edu/caldocs_agencies/508Tue, 05 Feb 2019 09:36:20 PST
In general, California has abundant water resources, but they do not occur where people live and work, nor does precipitation occur when water is needed. To deal with these basic disparities, water agencies have built the most extensive "plumbing system" in the world. Local, regional, state, and federal agencies have constructed reservoirs and aqueducts throughout the State.

None of the water projects was constructed easily or without controversy. From one perspective, the history of California is the history of arguing about water. More and more, however, the debates are changing from competition among water users to broader discussions of public concerns and preservation of common interests.

Back in 19 57, the Department of Water Resources published The California Water Plan (Bulletin 3). That report set forth an "ultimate" plan of potential water development, essentially demonstrating that the State's water resources are adequate to meet its "ultimate" needs. Bulletin 3 was followed by the Bulletin 160 series, published four times between 1966 and 1984 to update various elements of California's statewide water planning. These four technical documents examined then-current California water in considerable detail, outlining the Department's expectations of water supplies and water demand in coming decades.

The present report differs significantly in approach from its predecessors. Taking a broad view of water events and issues in California, Bulletin 160-87 examines current water use and supply and considers at length how California can continue to meet the water needs of a continually growing population. The report also discusses several leading water management concerns, such as the quality of water supplies, the status of the Sacramento-San Joaquin Delta, and evolving water policies. Overall, Bulletin 160-87 sets forth a wide range of information and views that we hope will aid water managers, elected officials, and the public.

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Department of Water ResourcesSea Level Rise and Storm Surge Projections for the National Park Servicehttps://digitalcommons.law.ggu.edu/federal_documents/29
https://digitalcommons.law.ggu.edu/federal_documents/29Mon, 04 Feb 2019 13:54:31 PST
Over one quarter of the units of the National Park System occur along ocean coastlines. Ongoing changes in relative sea levels and the potential for increasing storm surges due to anthropogenic climate change and other factors present challenges to national park managers. This report summarizes work done by the University of Colorado in partnership with the National Park Service (NPS) to provide sea level rise and storm surge projections to coastal area national parks using information from the United Nations Intergovernmental Panel on Climate Change (IPCC) and storm surge scenarios from National Oceanic and Atmospheric Administration (NOAA) models. This research is the first to analyze IPCC and NOAA projections of sea level and storm surge under climate change for U.S. national parks. Results illustrate potential future inundation and storm surge under four greenhouse gas emissions scenarios. In addition to including multiple scenarios, the analysis considers multiple time horizons (2030, 2050 and 2100). This analysis provides sea level rise projections for 118 park units and storm surge projections for 79 of those parks.

Within the National Park Service, the National Capital Region is projected to experience the highest average rate of sea level change by 2100. The coastline adjacent to the Outer Banks Group of parks in the Southeast Region is projected to experience the highest sea level rise by 2100. The Southeast Region is projected to experience the highest storm surges based on historical data and NOAA storm surge models.

These results are intended to inform park planning and adaptation strategies for resources managed by the National Park Service. Sea level change and storm surge pose considerable risks to infrastructure, archeological sites, lighthouses, forts, and other historic structures in coastal units of the national park system. Understanding projections for continued change can better guide protection of such resources for the benefit of long-term visitor enjoyment and safety.

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M. A., R. L. Beavers Caffrey et al.Report to the Legislature and to the Governor, FY 2015-2016https://digitalcommons.law.ggu.edu/caldocs_agencies/507
https://digitalcommons.law.ggu.edu/caldocs_agencies/507Mon, 04 Feb 2019 13:42:16 PSTAgricultural Labor Relations BoardReport to the Legislature and to the Governor, FY 2016-2017https://digitalcommons.law.ggu.edu/caldocs_agencies/506
https://digitalcommons.law.ggu.edu/caldocs_agencies/506Mon, 04 Feb 2019 13:42:03 PSTAgricultural Labor Relations Board2015 Annual Report - Together Creating A Clean Air Futurehttps://digitalcommons.law.ggu.edu/caldocs_agencies/505
https://digitalcommons.law.ggu.edu/caldocs_agencies/505Mon, 04 Feb 2019 13:34:27 PSTBay Area Air Quality Management District2016 Annual Report - Leading the Wayhttps://digitalcommons.law.ggu.edu/caldocs_agencies/504
https://digitalcommons.law.ggu.edu/caldocs_agencies/504Mon, 04 Feb 2019 13:34:15 PSTBay Area Air Quality Management District2017 Annual Report - Envision Deliver Protecthttps://digitalcommons.law.ggu.edu/caldocs_agencies/503
https://digitalcommons.law.ggu.edu/caldocs_agencies/503Mon, 04 Feb 2019 13:34:01 PSTBay Area Air Quality Management DistrictA Year of Readinghttps://digitalcommons.law.ggu.edu/pubs/837
https://digitalcommons.law.ggu.edu/pubs/837Wed, 30 Jan 2019 11:02:58 PST
How reading improved legal writing.
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Jennifer BabcockProtecting Natural Resources Through State Law: Two Examples from Californiahttps://digitalcommons.law.ggu.edu/pubs/836
https://digitalcommons.law.ggu.edu/pubs/836Wed, 30 Jan 2019 10:58:07 PST
With intransigence at the federal level on environmental issues, there is a unique opportunity for those seeking to improve the protection of natural resources to focus on state law and state agencies. This blog describes how, in California, two laws that present opportunities to protect natural resources are the Reclamation Act and the Coastal Zone Management Act.
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Paul Stanton KibelForty Years from Fascism: Democratic Constitutionalism and the Spanish Model of National Transformationhttps://digitalcommons.law.ggu.edu/pubs/835
https://digitalcommons.law.ggu.edu/pubs/835Tue, 29 Jan 2019 12:13:32 PST
This Article seeks to understand and evaluate core elements of the past promise and present reality of Spain’s transformation from Francoist dictatorship to modern European democracy. It does this by investigating the role of the 1978 Constitution and the distinctive Spanish Model of relatively peaceful constitutional transformation in facilitating the key legal elements of Spain’s transition to democracy. Following a review of important historical developments related to Spanish constitutionalism in Part I, this Article scrutinizes the process by which Spain transitioned to democracy in the 1970s. Part II focuses particularly on the dominant characteristics of the Spanish Model, which facilitated peaceful democratic transformation. Part III critically evaluates the use of the Spanish Model as a tool to decisively reject the core political elements of the Franco regime—autocratic rule, authoritarian governance, and fascism—and empower rights-based constitutional democracy. Finally, Part IV assesses the significance of the Spanish Model to the 1978 Constitution and the twenty-first century Kingdom of Spain and anticipates the Model’s potential for future global influence.

This Article argues that, despite recent, significant, and evolving challenges, constitutional democracy is strong in Spain and has been significantly aided by its constitutional text and the Spanish Model that inaugurated it. The Article concludes that, four decades later, there is much to study and learn from the way Spain successfully leveraged its constitutional process to overcome its authoritarian past and solidify its place as a stable modern democracy.

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Eric C. ChristiansenTotal Patent Exhaustion!https://digitalcommons.law.ggu.edu/pubs/834
https://digitalcommons.law.ggu.edu/pubs/834Thu, 10 Jan 2019 09:01:10 PST
The exhaustion doctrine generally provides that when a patent holder sells or authorizes another party to sell a patented item, the patent rights in that item are exhausted, and the patent holder cannot pursue that product down the stream of commerce to demand royalties from each party that subsequently acquires the item. Patent holders have often sought to evade patent exhaustion by drafting licensing agreements attending or authorizing the sale of their patented products that place restrictions on the use of the patented item or otherwise provide that no patent exhaustion has occurred. In Impression Products v. Lexmark, the Supreme Court held that such post-sale restrictions are ineffective to prevent patent exhaustion. This overruled Federal Circuit precedent holding that contractual restrictions to evade exhaustion were effective so long as they did not run afoul of antitrust laws or constitute patent misuse. This author has long argued that the Federal Circuit's interpretation of Supreme Court precedent was incorrect-that post-sale restrictions could not prevent patent exhaustion, as set forth in cases dating from the 1917 case Motion Picture Patents v. Universal Film to the 2008 case Quanta Computer v. LG Electronics.

A per se prohibition on contracting around exhaustion is justified by multiple policy principles, including (1) the policy against restraints on alienation of personal property; (2) the policy against compensation for patent holders above what is necessary to promote invention (commonly known as "double-recovery"); (3) the need to protect the boundary between federal patent law and the common law of contracts and property; and (4) all of these policies in addition to judicial efficiency when parties attempt to evade exhaustion in drafting a patent license agreement to settle litigation.

Some scholars argue that contracting around exhaustion allows for welfare gains such as increased output and vertical price discrimination. These scholars contend that the policy against restraints on alienation is a misunderstood and outdated relic of the common law; and that the policy against double-recovery has no empirical justification. To the contrary, total exhaustion protects modern consumers by preserving the used resale market, reducing the cost of goods, and protecting consumers from being locked into particular brands and secondary products. Arguments against total exhaustion for consumer goods fail to account for the inefficiencies of personal property servitudes, such as the uncertainty and research costs resulting from post-sale restrictions, hidden costs of products through tied secondary products, notice costs for licensed manufacturers, and the need for costly litigation to test the validity of contractual restrictions under rule of reason economic analysis-litigation that will rarely occur because it is beyond the reach of the great majority of consumers.

In short, the Supreme Court was correct as a matter of its own precedent and of sound policy that contractual post-sale restrictions are wholly ineffective to prevent exhaustion, regardless of whether they run afoul of antitrust law or constitute patent misuse. Patent law is not the poor stepchild of antitrust law. It pursues separate policies. Moreover, to the extent contracting around exhaustion is economically desirable for high-end, non-consumer goods, the Court's opinion does not result in absolute exhaustion in all circumstances. Pre-sale restrictions and leases may remain viable options for patent holders to evade exhaustion. For high-end, non-consumer products where there are lower transaction and notice costs relative to the price of the product, these avenues are practicable, and the concerns with servitudes and double recovery adhering in the consumer goods context are ameliorated.

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Paul Stanton Kibel et al.Childhood Obesity and Positive Obligations: A Child Rights-Based Approachhttps://digitalcommons.law.ggu.edu/pubs/832
https://digitalcommons.law.ggu.edu/pubs/832Mon, 03 Dec 2018 10:16:02 PST
Childhood obesity is one of the most serious current public health challenges. Its prevalence has increased at an alarming rate. The World Health Organization estimated that in 2016 the global number of overweight children under the age of five was over 41 million. Although there is widespread concern about the rising rates of childhood obesity, there is not as much consensus on how to address the problem. Obesity has been mostly considered either a matter of personal responsibility or of parental responsibility when it concerns children. Inadequate attention has been given instead to the obligations borne by States to prevent and combat child obesity under international human rights law.

This Article seeks to remedy such gap in the current research by discussing a comprehensive child rights-based approach that imposes positive obligations on States to prevent childhood obesity through the realization of children's rights to adequate food, health, and participation. This Article begins by exploring the causes of childhood obesity focusing on the multiple factors that influence weight, food preferences, and eating patterns in children. The Article proceeds by examining the international human rights law framework for States' positive obligations to fight obesity among children. It also discusses the child obesity-specific recommendations issued by the United Nations Committee on the Rights of the Child, the United Nations High Commissioner on Human Rights, the Special Rapporteur on the Right to Food, the Special Rapporteur on the Right to Health, and finally, the Special Rapporteur in the Field of Cultural Rights who have further clarified the States' central role and responsibilities in the development and implementation of effective measures and strategies for child obesity prevention. The Article concludes that the right of children to participate in the decision-making processes related to their nutrition and health in accordance to the principles of the Convention of the Rights of the Child must also be at the core of governments' obligations to ensure the full realization of children's rights to adequate food and to health and the adoption of more effective solutions.

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Benedetta Faedi DuramyPlaying Favorites? Implicit Bias on the Benchhttps://digitalcommons.law.ggu.edu/pubs/831
https://digitalcommons.law.ggu.edu/pubs/831Fri, 30 Nov 2018 14:18:29 PST
The concept of implicit bias has moved to the forefront of public discussion in the last decade, and many judges have already been trained on this issue. But it is worth considering how a specific type of implicit bias, in-group favoritism, may affect a judge’s everyday decisions.
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Michele Benedetto Neitz